Symposium: Bridgegate scandal comes to the court (corrected)

For residents of Fort Lee, New Jersey, the first day of school in September 2013 was a memorable one and not in a good way. The traffic patterns on the George Washington Bridge, which crosses the Hudson River into New York at Fort Lee, had been abruptly altered, so that only one lane (instead of the normal three) was reserved for drivers accessing the bridge from Fort Lee. Gridlock ensued, with commuters and school buses on the streets of Fort Lee delayed for hours. In one case, paramedics responding to a 911 call had to get out of their ambulance and walk. It was later revealed that the decision to change the lanes had been made to retaliate against Mark Sokolich, the Democratic mayor of Fort Lee, after he declined to endorse then-New Jersey Governor Chris Christie, who was up for re-election in 2013. The move was a piece of political payback; this winter, the Supreme Court will hear oral argument on whether it was also a federal crime.

The George Washington Bridge the busiest bridge in the world is operated by the Port Authority of New York and New Jersey, a joint venture between the two states that receives significant support from the federal government. On the bridges upper deck, there are 12 toll lanes going from New Jersey into New York. Under a decades-old arrangement, three of those 12 lanes have been separated from the others during the morning rush hour with traffic cones to allow local traffic from Fort Lee to cross the bridge more easily.

But when Sokolich refused to endorse Christie, David Wildstein a Port Authority staffer who effectively served as the chief of staff to William Baroni, whom Christie had named as the deputy executive director of the Port Authority told Bridget Anne Kelly, Christies deputy chief of staff, that the Port Authority could close down those Fort Lee lanes on the bridge to put some pressure on Sokolich. Kelly responded in an email: Time for some traffic problems in Fort Lee. To justify the change to the traffic patterns, Wildstein, Baroni and Kelly falsely told Port Authority employees that they were conducting a traffic study. The trio also agreed to deviate from normal protocol and give only last-minute notice of the lane closures. The new traffic patterns also came at a cost to the Port Authority itself, which had to pay approximately $5400 to have an extra toll collector standing by and for traffic engineers to carry out the phony traffic study.

After three days, the executive director of the Port Authority learned about the traffic changes and ordered Port Authority employees to restore the three dedicated lanes for traffic from Fort Lee. Wildstein, Baroni and Kelly were all fired or forced to resign, and Christies public-approval ratings plummeted.

The fallout from Bridgegate, as the incident was dubbed, did not end there. Wildstein pleaded guilty to two conspiracy counts and was sentenced to probation. Kelly and Baroni were indicted on charges that they had violated federal statutes prohibiting wire fraud and fraud from federally funded programs. Kelly was sentenced to 18 months in prison, which was later reduced to 13 months after a federal court of appeals threw out civil rights charges against her. Baroni was sentenced to 18 months in prison as well.

The U.S. Court of Appeals for the 3rd Circuit upheld Kellys and Baronis convictions, concluding that the requirements of the fraud statutes had been met: Kelly and Baroni had engaged in deception when they made up the fictitious traffic study to justify the change to the traffic patterns, and their lies deprived the Port Authority of property the otherwise unnecessary labor of its employees and its right to control the bridge lanes. Kelly asked the Supreme Court to weigh in, which it agreed to do last summer; Baroni has joined her in asking the justices to overturn their convictions.

In their briefs on the merits, Kelly and Baroni emphasize that, under the Supreme Courts precedent, even if their conduct may have been petty, sensitive, and ill-advised, it wasnt fraud. They explain that they could not have deprived the Port Authority of property because the governments power such as the power to change traffic patterns is not, for purposes of the fraud statutes, a property interest. Any other conclusion, they suggest, would put every official action in the sights of the fraud laws, turning them into broad government ethics codes.

More broadly, Kelly and Baroni argue, if the 3rd Circuits decision is allowed to stand, a public official who lies about the real reason for a decision that would otherwise be legal will have defrauded the government of propertyat a minimum, her own labor. If that official uses the phone or email as part of her plan, or works for a government that receives federal money, then she can be guilty of a federal crime. Such a rule, they warn, will have sweeping and pernicious effects, potentially exposing to prosecution a deputy mayor who orders pothole repair to reward her bosss political base or someone who appoints a friend to a job and says he is best qualified. Invoking the Supreme Courts recent ruling in the challenge to the decision to add a question about citizenship to the 2020 census, they note that it would even extend to a Secretary of Commerce who causes dozens of lawyers to conduct an unnecessary defense of that decision. In short, they predict ominously, upholding the lower courts decision would transform the judiciary into a Ministry of Truth for every public official in the nation. And it would readily enable partisans not just to harangue and harass political opponentsbut to prosecute and jail them.

In its brief opposing review at the Supreme Court, the federal government countered that Kellys conviction (and, presumably, Baronis) meets the requirements of the federal fraud statutes because Kelly and her co-conspirators lied to carry out a plan that did not serve any legitimate purpose but would nonetheless deprive the Port Authority of its property. It is well established that the labor of public employees can be property for purposes of the fraud statutes, the government stressed, and here the Port Authority had to pay thousands of dollars in overtime wages for toll workers as a result of the changes to the traffic pattern, while the phony traffic study also required the Port Authority to spend nearly $2,000 on pointless work by traffic engineers. Moreover, the government added, Kelly, Baroni and Wildstein could not have carried out the changes in the traffic patterns without lying about them: Once the executive director of the Port Authority became aware of the lane changes, he immediately ordered a return to the original setup.

The government strongly rejected Kellys characterization of the 3rd Circuits decision as creating liability whenever a public official announces a reason for her action that is not her actual motivation. An official who has the sole power to make a decision will not be liable under the fraud statute just because she allows that decision to be influenced by politics, the government explained. A mayor could, for example, prioritize plowing snow in a neighborhood where he was seeking votes, even while announcing that public safety was the reason for plowing that neighborhood first. But that wasnt the case here, the government noted: Kelly and her co-conspirators had to concoct a fake traffic study precisely because they didnt have the power to change traffic patterns on their own.

Three years ago, the Supreme Court gutted public corruption charges against former Virginia Governor Robert McDonnell. Writing for a unanimous court, Chief Justice John Roberts acknowledged that McDonnells behavior was distasteful and that the case against him was tawdry, but Roberts emphasized that the court was worried about the broader legal implications of the governments boundless interpretation of the federal bribery statute. Kelly and Baroni clearly hope that the justices will harbor similar concerns about the 3rd Circuits interpretation of the fraud statutes in their case; well know more after the oral argument about whether that is likely to be true.

This post was originally published at Howe on the Court.

This post originally stated that Wildstein, Kelly and Baroni were indicted on federal fraud charges. Only Kelly and Baroni were indicted; Wildstein was not.